Opinion
70606/12
04-04-2016
U.S. Bank National Association, as Trustee for the holders of the Citigroup Mortgage Loan Trust Inc, Asset-Backed Pass-Through Certificates, Series 2007-AMC2, Plaintiff, v. Robert M. Glusky, et al., Defendants.
Frenkel, Lambert, Weiss, Weisman & Gordon By: Todd Schwartz, Esq. Attorneys for Plaintiff 53 Gibson Street Bay Shore, New York 11706 BY NYSCEF Clair & Gjertsen, Esq. By: Mary Aufrect, Esq. Attorneys for Defendant Robert M. Glusky 4 New King Street, Suite 140 White Plains, New York 10604 BY NYSCEF Shapiro Gettinger & Waldinger, LLP Attorneys for Defendant Board of Managers of Bedford Mews Condominium 118 North Bedford Road Mount Kisco, New York 10549 BY NYSCEF
Frenkel, Lambert, Weiss, Weisman & Gordon By: Todd Schwartz, Esq. Attorneys for Plaintiff 53 Gibson Street Bay Shore, New York 11706 BY NYSCEF Clair & Gjertsen, Esq. By: Mary Aufrect, Esq. Attorneys for Defendant Robert M. Glusky 4 New King Street, Suite 140 White Plains, New York 10604 BY NYSCEF Shapiro Gettinger & Waldinger, LLP Attorneys for Defendant Board of Managers of Bedford Mews Condominium 118 North Bedford Road Mount Kisco, New York 10549 BY NYSCEF Joan B. Lefkowitz, J.
The following papers were read on this motion by defendant Robert M. Glusky (hereinafter "moving defendant") for an order pursuant to CPLR 3101 striking plaintiff's Notice to Admit, and for such other relief as the court deems just and proper. Order to Show Cause - Affirmation in Support - Exhibits A-E Affirmation in Opposition - Exhibits A-J
Upon the foregoing papers and the proceedings held on April 4, 2016, this motion is determined as follows:
Plaintiff commenced this mortgage foreclosure action in 2012. Thereafter, plaintiff moved for summary judgment. Moving defendant, Robert M. Glusky, opposed the motion on the grounds that plaintiff had not satisfied a condition precedent to commencing a loan foreclosure action. Specifically he claimed that plaintiff had not complied with the notice requirement pursuant to Real Property Action and Proceeding Law ("RPAPL") §1304. Moving defendant also argued that plaintiff lacks standing to bring this action. By Decision and Order entered on October 7, 2015, the Court (Giacomo, J.) held that plaintiff had not established prima facie entitlement to summary judgment and an order of reference since it had not established as a matter of law that the notice required by §1304 had been sent 90 days prior to the institution of the foreclosure action.
On or about November 25, 2015, plaintiff served moving defendant with a Notice to Admit which reads as follows:
1.That a true and accurate copy of the Note which is the subject of this action is annexed hereto as Exhibit "A" ("Note").
2.That the defendant, Robert M. Glusky executed the Note.
3.That a true and accurate copy of the recorded Mortgage which is the subject of this action is annexed hereto as Exhibit "B." ("Mortgage").
4.That the defendant, Robert M. Glusky executed the Mortgage.
5.That the defendant, Robert M. Glusky failed to remit the payment due under the note and mortgage due on February 1, 2009, and all subsequent payments.
6.That the plaintiff was the holder of the note and mortgage on December 18, 2012.
7.That a true and accurate copy of the 90 day pre-foreclosure notice, dated February 29, 2012 and sent via first class mail on March 2, 2012, addressed to Robert M. Glusky, 208 Harris Rd., Apt GB7, Bedford Hills, NY 10507-2130 is annexed hereto as Exhibit "C".
8.That a true and accurate copy of the 90 day pre-foreclosure notice dated February 29, 2012 and sent via first class mail on March 2, 2012, addressed to Robert M. Glusky, 208 Harris Rd., Apt GB7, Bedford Hills, NY 10507-2130 and bearing United States Postal Service tracking number 7196 9006 9295 8289 2525 is annexed hereto as Exhibit "D".
9.That a true and accurate copy of the United States Postal Service certified mail receipt, bearing tracking number 7196 9006 9295 8289 2525 is annexed hereto as Exhibit "E".
10.That the certified mail receipt annexed hereto as Exhibit "E" is signed by Robert M. Glusky.
11.That notices pursuant to RPAPL 1304 were mailed to Robert M. Glusky in accordance with the statute.
12.That a true and accurate copy of the demand letter, mailed to Robert M. Glusky, 208 Harris Rd., Apt GB7, Bedford Hills, NY 10507-2130 on May 27, 2009 is annexed hereto as Exhibit "F".
On or about February 12, 2016 moving defendant responded to the Notice to Admit, admitting the statements contained in paragraphs "2" and "4" and objecting to all other paragraphs. Moving defendant now seeks an order striking plaintiff's Notice to Admit on the ground that the Notice to Admit seeks facts that go to the heart of the case.
In opposition, plaintiff contends that moving defendant's response was untimely and the contention that the matters which are the subject of the Notice to Admit "go to the heart of the claims in this case" is a misinterpretation. Plaintiff asserts that it is simply seeking admissions as to the genuineness of papers and that the Notice to Admit is proper.
CPLR 3123 (a) states, in relevant part, that "a party may serve upon any other party a written request for admission by the latter of the genuineness of any papers or documents, or the correctness or fairness of representation of any photographs described in and served with the request, or of the truth of any matters of fact set forth in the request as to which the party requesting the admission reasonably believes there can be no substantial dispute at the trial and which are within the knowledge of such other party or can be ascertained by him upon reasonable inquiry." A notice to admit is designed to remove from the case those uncontested matters which are easily provable and would present a time-consuming burden at trial, but cannot be used to seek admissions of material issues, ultimate or conclusory facts, or an interpretation of law (Priceless Custom Homes v O'Neill, 104 AD3d 664 [2d Dept 2013]; Nacherlilla v Prospect Park Alliance, 88 AD3d 770 [2d Dept 2011]; Rosenfeld v Vorsanger, 5 AD3d 462 [2d Dept 2004]; Villa v NYC Housing Auth., 107 AD2d 619 [1st Dept 1985]; Berg v Flower Fifth Ave. Hosp., 102 AD2d 760 [1st Dept 1984]). Issues which go to the heart of the matter are not the proper subjects for a notice to admit and should be stricken (Nacherlilla v Prospect Park Alliance, 88 AD3d at 772; DeSilva v Rosenberg, 236 AD2d 508, 509 [2d Dept 1997]; Burnside v Foglia, 208 AD2d 1085 [3d Dept 1994]). A notice to admit may not be used as a substitute for other discovery devices, such as taking depositions before trial (Singh v G & A Mounting & Die Cutting, 292 AD2d 516 [2d Dept 2002]; DeSilva v Rosenberg, 236 AD2d at 508-509; Berg v Flower Fifth Ave. Hosp., 102 AD2d at 760-761).
Here, this court finds that the Notice to Admit seeks admissions as to material issues in dispute in the action and is palpably improper (see HSBC Bank USA, N.A. v Halls, 98 AD3d 718 [2d Dept 2012]). Plaintiff cannot genuinely claim that there is no substantial dispute as to the allegations set forth in the Notice to Admit in light of Justice Giacomo's Decision and Order. Moreover, plaintiff's argument that the Notice to Admit should not be stricken since moving defendant did not object to the Notice to Admit in a timely manner is without merit. Since the requests in the Notice to Admit are palpably improper, the moving defendant was not required to respond to them (see 32nd Ave. LLC v Angelo Holding Corp., 134 AD3d 696 [2d Dept 2015]). Accordingly, moving defendant is entitled to a protective order striking the Notice to Admit.
In view of the foregoing, it is hereby
ORDERED that the motion to strike plaintiff's Notice to Admit dated November 25, 2015 is granted; and it is further
ORDERED that the parties are directed to appear for a conference in the Compliance Part, Courtroom 800, on April 25, 2016 at 9:30 AM. Dated: White Plains, New York
April 4, 2016 HON. JOAN B. LEFKOWITZ, J.S.C.